Kavanaugh failed to explain expansive view of executive power - strib editorial

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And, yet, the advice and consent role of the Senate was not intended as a mere rubber stamp. Unfortunately, in the vetting of Judge Brett Kavanaugh, Republicans chose to ramrod through a nomination that should have, by any measure, received far closer scrutiny than it has. Their refusal to release more than 100,000 documents that include Kavanaugh’s time as a high-level political operative in the George W. Bush White House and as investigator for special counsel Kenneth Starr in his pursuit of President Bill Clinton, is a shameful and deliberate abrogation to fulfill their check-and-balance responsibility, particularly as regards a lifetime appointment.

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That is a departure for this board, which earlier supported the nomination of conservative Judge Neil Gorsuch to the high court. Our opinion on Kavanaugh is not based on his positions on issues such as abortion rights, gun rights and voting rights. A Republican president would be expected to nominate someone aligned with his values, and, for the most part, Kavanaugh is fairly typical of judges who could pass muster with the Federalist Society, to whom President Donald Trump delegated the initial cull.

But there is something different about this nominee. Alone among the more than two dozen names Trump considered, Kavanaugh has endorsed a singularly expansive view of executive power, even stating in a paper and speech that the president should be immune from criminal investigation or prosecutorial questions while in office.

Given the ongoing investigation by special counsel Robert Mueller, Kavanaugh had a responsibility to fully air his thinking. Instead, he evaded, suggesting during hearings that his 2009 Minnesota Law Review article was simply a call for Congress to pass a law shielding presidents from legal inquiries.

That paper, however, also contains this telling footnote in which Kavanaugh himself raised the issue of constitutionality: “Even in the absence of congressionally conferred immunity,” he wrote, “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” (“Separation of Powers During the Forty-Fourth presidency and Beyond,” pg. 8, footnote 31.)

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http://www.startribune.com/kavanaugh-failed-to-explain-expansive-view-of-executive-power/493347651/